Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Driving, r 306 and previous posts – explained

Usually on this blog I answer questions or discuss legal developments (cases or new legislation) that come to my attention. That means the discussion is about the issue at hand. Following discussion on advanced first aid skills I wrote a more generic post, a more ‘helicopter view’ of the issues as I saw them. That seemed to go down well so I’m now going to do the same thing with respect to the road rules. To make sure this is generic I’ll refer to the Australian Road Rules as published by the National Transport Commission (Australian Road Rules 2012, as amended to November 2015). As the Commission says, the Road Rules

… form the basis of Road Rules of each Australian state and territory. Each state and territory has mostly copied the Rules into their own laws, however, not every provision has been copied exactly in each.

By referencing the model document I’m not referring to the law in any particular state.

We know the relevant road rules for this discussion are rules 78, 79 and 306. They say:

78 Keeping clear of police and emergency vehicles

(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely…

(3) This rule applies to the driver despite any other rule of the Australian Road Rules.

79 Giving way to police and emergency vehicles

(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm…

Note 2 For this rule, give way means:

(a) if the driver is stopped — remain stationary until it is safe to proceed; or

(b) in any other case — slow down and, if necessary, stop to avoid a collision;…

(2) This rule applies to the driver despite any other rule of the Australian Road Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

306 Exemption for drivers of emergency vehicles

A provision of the Australian Road Rules does not apply to the driver of an emergency vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the rule should not apply; and

(b) if the vehicle is a motor vehicle that is moving — the vehicle is displaying a blue or red flashing light or sounding an alarm.

Rule 305 provides a similar exemption for the drivers of a police vehicle. Rule 307 provides for exemptions from parking restrictions for police and emergency vehicles. Rule 300(1)(b) provides that the rule against using a mobile phone whilst ‘not parked’ does not apply to the driver of an emergency or police vehicle.

Let us assume that there is an accident between a responding appliance and another vehicle. The question people want to answer is ‘who is at fault?’. The answer to that question does not depend simply on those rules above. We can use as an example the video that’s been doing the rounds on Facebook of a NSW Police car involved in a minor collision – see https://www.facebook.com/DashCamOwnersAustralia/videos/1308226399236997/.

Fault – criminal law

With respect to criminal law, the issue is not ‘who is at fault?’ but ‘has anyone committed an offence?’ It may be that both drivers are guilty of an offence or neither are. It’s not a binary choice – it’s one or the other.

The driver of the police car has the warning beacons activated (or at least let’s assume that is the case). The rule says that in the right circumstances the police driver commits no offence for failing to stop at the stop line and waiting for the red light that is facing him or her to turn green (Australian Road Rules rr 56 (Stopping for a red traffic light or arrow) and 305 (Exemption for drivers of police vehicles)). But the police driver isn’t exempt those parts of the traffic laws that are not contained in the Australian Road Rules, given this was in NSW, the Road Transport Act 2013 (NSW) s 117 (“A person must not drive a motor vehicle on a road negligently”). To drive ‘negligently’ means to drive without due care and attention.

The video shows that the driver slowed, waited etc so we can argue whether he or she was driving without due care and attention. The more general point to make is that even if you have right of way, it doesn’t mean you can go. Let’s take a more ‘pedestrian’ example – if you are driving along facing a green light and there are pedestrians walking across a crossing, you can’t run into them and argue it’s their fault as you had ‘right of way’. Even when you have right of way you have to assume others will not honour that and you have to be prepared to avoid the accident.

In Hine v O’Conner [1951] SASR Abbott J said (at pp 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.”

So the mere fact you have ‘right of way’ (as the police car did) does not mean you are not ‘at fault’ in a collision.

What is evident from the comments that follow the video, and the disagreement as to who’s at fault, is there is more to it than the road rules. Resolving the question of fault depends on what each driver saw and thought. To go back to that video there would be questions of whether or not the red car was already blocking the police car’s path (note r 79 says the driver has to stop, r 78(2) says that if the driver is in the path, he or she has to move). Who saw who? Where was the driver of the police car looking? The issue is not at the time he or she moved over the stop line but at the time he or she drove into the vehicle in front.

Let me take another example, based on an earlier post – Air Horns on A CFA Appliance (January 20, 2017). The question in essence was whether the use of air horns added anything to the use of beacons and a siren. A commentator on that post pointed out that

Use of an airhorn whilst responding a CFA appliance is covered under CFA SOP 12.04 which states…

Air horns may be used in conjunction with the siren, but shall only be operates in short blasts. Air horns are not deemed to be a siren.

But what does it mean that the CFA have said that ‘Air horns are not deemed to be a siren’? It means that from the CFA’s point of view, they are not equated to a siren (or alarm) so if the CFA says you have to use your siren, the air horns, alone, aren’t sufficient. But that won’t answer a legal question.

Assume that an appliance is being driven in an emergency response with lights, sirens and air horns. At some point the siren stops working but the air horns are still working. As far as the driver knows the beacon warning lights are still working so he or she continues to respond using the air horns. A collision occurs. After the collision an inspection of the appliance reveals that the beacons had also failed due to some fault in the warning device circuitry so when the siren cut out, the lights did too, but there was no indication to the driver of the extent of the failure. Who’s at fault.

Assume the driver of the other car says ‘yes I saw the CFA appliance, I heard the air horns, but I’m a bush lawyer and I know the road rules and without flashing lights or siren (which the CFA says air horns aren’t) I knew I didn’t have to give way so I didn’t’. I suspect any police officer or court would say that r 306 requires lights or an alarm, the horns brought the presence of the appliance to the attention of the driver, it was clear the driver of the appliance was seeking to move through traffic, you should have given way – it’s your fault.

Change the story, the other driver says ‘I heard a siren so I was looking for an emergency vehicle, but then the siren stopped. I saw the CFA appliance but it had no lights or sirens and I could hear the air horns but couldn’t tell where they were coming from so I thought the best thing to do was keep coming’. In that case questions are going to turn to the driver of the appliance – you knew your siren wasn’t working? Did you check the lights? You must have realised that air horns without sirens are not what people were expecting? Why did you drive on into the intersection. It’s your fault.

Now it’s not that simple because I haven’t given a story about the appliance driver’s perspective but the point is that by telling the story differently, we might reach different conclusions even though the nature of the driving of the appliance, and the road rules didn’t change.

So who’s to decide? Again if you read the comments that follow the video some people think the police officer was at fault, others blame the driver of the red car. Discussion is all well and good but it doesn’t lead to resolution of issues such as ‘who’s going to pay for the damage?’ A decision has to be made and that is what the police and courts are there for. So don’t blame the police if they charge a driver, or the court for hearing and determining the matter. Arguing ‘it shouldn’t be in court as the driver had the benefit of r 306’ is just asserting a conclusion you want the court to achieve, that is it is for the court to determine whether r 306 applies.

So what’s the point of r 306? If you believe r 306 is going to get you out of trouble in a collision you’ve missed the point of the section. It’s really a section that allows police and the fire service to avoid criticism. We know that in today’s world, no matter what you do, someone’s there with a camera. So when someone photographs a police officer using a mobile phone, or a fire appliance have a near miss when going through a stop sign, someone’s going to put that photo on social media and say ‘why don’t they get a ticket, I would’. These rules allow the police to withdraw infringement notices for camera detected offences and not issue tickets because they point to a law that says ‘it was authorised; it’s not corruption or mates looking after their mates, the law says they’re allowed to do it’.

But rules like r 306 are written very vaguely and if I can steal a phrase from my friend Stephen Carter (of ACT RFS and SES) it’s a ‘self-licking ice-cream’. It only applies if you’re taking reasonable care, and if you crash, prima facie you weren’t taking reasonable care. Because even if you have right of way, the overriding obligation is not to crash. The very act of being involved in a collision is evidence that you were not taking reasonable care.

Now it’s not correct, but it’s not a bad rule of thumb, that in any accident both drivers are at fault. It’s not correct because some things aren’t ‘accidents’ eg where a driver deliberately rams another vehicle and sometimes one person’s driving is so bad there really is nowhere to go and nothing the other driver can do. Classically running into the back of a stationary vehicle would be an accident where the person in front is not at fault. But let’s stick to my rule of thumb – even when every rule is on your side there is still something you can do to avoid an accident – just ask any motorcyclist how much depending on ‘right of way’ won’t keep you alive. So the collision is evidence (not proof, but evidence) of a failure to take reasonable care and if that’s the case r 306 disappears so as soon as there’s an accident, police and if push comes to shove, a court is going to have to consider whether or not the driver was taking ‘reasonable care’ so once you have an accident you can’t just point to the lights and sirens, you’re going to have to explain your action and possibly get a ticket or worse.

The effect is that r 306 allows the police and courts to lawfully not proceed against a driver who proceeds through a red light or exceeds the speed limit but it doesn’t determine who is at fault if a crash actually occurs.

Civil liability

Fault is a critical issue here, the driver at fault is required to make good any damage done. In reality it’s their insurance company and in some jurisdictions, personal injuries compensation doesn’t depend on fault. That’s true in all jurisdictions if the person’s injuries are catastrophic. In those cases, the compulsory third party scheme will cover the costs of meeting the person’s basic needs but if they can prove fault they may be entitled to recover more for economic losses and general damages. This is not the forum to consider all the various schemes but to say that the liability doesn’t really belong to the driver.

When considering civil liability, a court doesn’t have to find it was driver A or driver B at fault. The court can apportion blame – driver A 40%, driver B 60%. If that is the case and driver A is suing driver B, the court will determine the value of A’s damages according to law, and then order that B pay 60% of that amount.

The road rules are relevant here in that they are factors that the ‘reasonable driver’ pays attention to, but a ‘reasonable driver’ including the driver of a fire appliance knows that if he or she doesn’t pay attention, someone could die. Even if they don’t crashing the appliance will defeat the purpose of the emergency response so the driver will pay very careful attention.

Discussion

The Road Rules are merely the starting point. The presence of r 306 does not give a broad exemption. It is very narrow, limited only to an exemption from the other rules set out in the Australian Road Rules (not all traffic law) and only if the driver is taking ‘reasonable care’. It’s the reasonable care that’s critical. And if you’re involved in a collision, the question ‘were you taking reasonable care?’ has to be asked and answered – and the answer doesn’t come from the driver but ultimately a court (see Road Traffic Exemption – Who Determines if it is Reasonable that the Provision Should Not Apply? (May 22, 2016)).

In any accident, it may be that neither driver was taking ‘reasonable care’ so fault is not a binary choice, it can be shared. The conclusion that driver A, or driver B was, or was not, exercising reasonable care depends upon the facts of which the presence of lights and sirens, and the road rules are just part of the factual picture.

Conclusion

I can draw three conclusions after running this blog for some 8 years. My justifications for two of them are summarised in this post and in my other omnibus post, Scope of Practice – Previous Posts Explained (January 21, 2017). Those conclusions are:

If you have the skills to save someone’s life, use them; and

If you are driving an emergency service vehicle, the most important rule is ‘don’t crash’.

One thought on “Driving, r 306 and previous posts – explained”

Good morning Michael. As a Paramedic I appreciate your blog & posts immensely & can often relate to your comments. Regarding this particular one referring to “horns” being used as ‘warning devices’, it totally amazes me the number of times vehicles that are encountered whilst displaying “light & sirens” still fail to give way. However, once the horn is sounded they almost immediately move out of the way. Is it lack of knowledge or just plain stupidity that results in this action? I feel assured that many other first responders will attest to this same experience. Keep up the excellent work, it is appreciated. A.J. Simon. BHSc.